Friday, August 22, 2014

Trials: They're Not Just For TV Attorneys

My civil trial is almost wrapped up. All the evidence and testimony has been presented. The only thing remaining is closing arguments, which will take place first thing Monday.

Leading up to this trial, I was very nervous. I was almost dreading it. I was supposed to have completed a criminal trial to help give me some experience. Unfortunately that criminal trial kept getting continued and still hasn't happened. So, I went in to Monday with equal feelings of horror, anxiety, and excitement.

On Monday, I did the voir dire questions. It wasn't as scary as I thought it would be. Although it was a little uncomfortable throwing a volley of questions at total strangers and trying to engage them in a dialogue. I was told it went well. It all was pretty much a blur to me.

After that, I sat at the counsel table for two days paying close attention to examinations, taking notes, and suggesting follow up questions as the opposing counsel put on his case and then as my co-counsel examined their witnesses. We filed some last minute motions and had to do some last minute briefing. Although I didn't examine any witnesses for the first two and a half days, I came home completely exhausted, both mentally and physically, each night after averaging about 14 hours of consecutive work each day. By Wednesday night, I felt that same gnawing sense of exhaustion that I had felt after the bar exam. I could barely recall my middle name or focus on walking in a straight line. But still.... it was a happy, drunken sort of exhaustion.

During this whole time, I was still dreading doing my own witness examinations. I'm not much of a public speaker. When put on the spot, I get flustered easily. However, by just sitting in the courtroom all day long for the past couple days, "trial" slowly became less and less scary. (And by today, day five of trial, the edge is pretty much gone and I feel completely at-ease in a courtroom.)

Wednesday afternoon, it was finally time for me to call my first witness. Despite my prior anxiety, I felt calm and collected as I approached the podium. I didn't sweat. I didn't shake. Amazingly, I felt completely in control. I honestly did not recognize myself. Before I knew it, I had zipped through two of my four witnesses before we recessed for the end of the day. Three hours of witness examination had flown by. It had gone surprisingly well. Although my examinations weren't perfect (it's so hard not to ask leading questions when you are trying to get your witness to say something specific!), I felt that things went pretty darn good for a rookie!

The next morning, I finished with my last two witnesses and then we rested our case. As the day before, I was a little nervous until I stood at the podium. Then I went into full lawyer mode and focused solely on the task at hand. By the end of our case, I kept thinking, "That's it? That's what I was so afraid of?" Driving home that night, knowing my part of the trial was mostly done, I felt an overwhelming relief and an inflated sense of pride and confidence. "I DID it. I guess I CAN do this whole trial lawyer stuff after all!"

Then I got to come home, take off my suit and panty hose, and collapse on the couch. It was pretty much the cherry on top of one of my best and favorite days as a lawyer. Not only was this week-long trial my most educational and enlightening experience as a lawyer, it has been by far my most rewarding and my favorite.

A couple things I'm reflecting on about trial:
  • Judges are people too. And if you get a good judge, he/she will be very open about the fact that she/he is imperfect.
  • For examining witnesses: the best thing you can do is be overly prepared. Create a thorough outline but be prepared to depart from that outline. You just never know what your witness will say and you just never know what facts are the most critical to stress until you get to trial and hear the arguments from the other side.
  • You MUST revise your cross examination to reflect/address what happens on direct exam. You can't always just read your script. I feel like the opposing counsel did not do this and they looked silly by asking questions that became irrelevant based upon what my witnesses said on direct.
  • Treat direct examinations as a dialogue. Tell a story through your witness. Try to make it seem as natural as possible. Don't just treat it like an interrogation- unless you have a hostile witness. Help the jury get lost in the story so that they almost forget they are in a court room. A bored jury is not a good thing!
  • Professionalism is important. You don't have to be a jerk to win your case. Being an effective advocate for your client does NOT require you to act like a douche bag (ESPECIALLY TO THE JUDGE!!!). Wow, the stories I could tell! Maybe some day.
  • Read the jury. During testimony, keep an eye on the jury. See how receptive they are to what they are hearing. It's hard to read some people but it's easy to tell when your jury is falling asleep.
  • Have fun. Making it all the way to trial is not common in civil litigation (unless maybe you do insurance defense). The last time my co-counsel was in trial was seven years ago. If you have the opportunity to go to trial, take full advantage and appreciate every little thing.
  • Trial is the best way to become comfortable in the court room. It also completely changes your perspective on everything that happens in the pre-trial phases of litigation.
  • Be strategic! File motions to dismiss claims or exclude witnesses/evidence if it becomes clear the witnesses lack foundation or the evidence does not support a specific claim/defense. Motion drafting does not necessarily end when trial begins.
  • Working with co-counsel has been amazing. Trying a case with someone can be an incredible bonding experience. Working with my small team has been one of my favorite parts of the trial.
For me, trial was an amazing experience. Without a doubt, it has made me a better lawyer and a more confident person. This trial has been the absolute highlight of my career so far and I think I will be hard-pressed to beat this as one of my favorite experiences as an attorney. All that pretty much goes to show that scary experiences and challenges beyond one's comfort zone are not only important, but critical, in the practice of law. They are the best way to grow and tone lawyer skills. Whenever you feel that a task is beyond your comfort zone, that's the best reason to accept and embrace it (horror, anxiety, ulcers, and all).

In sum: I LOVE TRIALS. I hope I get a new one soon!


  1. You're making me wish I had been a litigator. (Actually, sometimes I still think about whether I could somehow get a little courtroom experience... it sounds like so much fun!)

    CONGRATULATIONS on completing your first trial!!